By: Amber Bynum
Published: 2/24/2020
In this modern era, emojis have become a common form of communication[1]—and evidentially spilling over to workplace communication. As technology advances, laws and workplace policies have failed to adapt to the trends.[2] Emojis can present opportunities for subjective and possibly objective harassment in the workplace that can lead to conflicts and complaints.[3]
An emoji is a small image or icon that is used to express emotion or ideas via electronic communication.[4] The faces and symbols of emojis come in numerous shapes and forms, and the emojis are used to illustrate how the sender is feeling or the intended meaning of what she or he has written.[5] Emojis were created in 1990 by Shigetake Kurita, who worked for one of Japan’s largest mobile operators.[6] Emojis, however, started taking off in the 2010s and has evolved into the new millennial language.[7] Ever since its inception, emojis have been a tool of expression in the modern world.[8] Currently, there are over 1,800 characters supported,[9] and the use of emojis includes a multitude of categories that allows more accurate representations of people and objects around the world, including different races, zodiac signs, and national flags.[10] The “right” emoji can convey a variety of messages such as emotional valence, cultural jokes, or other valuable information.[11] One inherent trouble of communicating via emojis is the difficulty of determining the reader’s intent of the message.[12] Another problem is that there are no clear-cut dictionary definitions for emojis, and most of the emojis have evolved to represent a concept or message that may not be uniform to everyone.[13] The lack of uniform interpretation could be deemed problematic when employees or managers send emojis that can be perceived differently in the workplace.[14]
Under Title VII, employees have a right to work in an environment free of discriminatory harassment that adversely affects their “terms, conditions, or privileges of employment.”[15] There are two types of sexual harassment: quid pro quo or hostile work environment. Quid pro quo occurs when sexual compliance is exchanged for an employment opportunity.[16] Hostile work environment occurs when unwelcomed sexually related behavior creates an intimidating, hostile, or offensive work environment.[17] In cases dealing with sending emojis, the sexual harassment will more likely fall within a hostile work environment. An employee will now be forced to pay attention to the specific types of emojis—kissing face, stuck-out tongue face, wink, smile, a smirk—to decipher the sender’s intent. Certain emojis could contradict the plain meaning of the text and be considered inappropriate.[18] Imagine a manager sends a text to a colleague with a tongue-out face or an eggplant emoji.[19] The recipient-employee can subjectively perceive the manager’s text to be inappropriate and find the text message to cause a hostile work environment. However, emojis are not a “universal language”[20] and should never be deemed one, because the meanings behind them should be considered in the context of the messages they are included.[21] As technology continues to advance and with newer generations using emojis for novel significances, the courts will never be able to keep up and decipher the context of the emoji use. On top of what the victim perceived from the emoji, courts will have to consider emoji’s admissibility to the factfinder.[22] Admissibility of emojis into evidence has become a widely debated topic because courts would have to determine the sender’s intended message when a particular emoji is used.[23] This problem arises because an emoji alone can change the entire meaning of a message.[24]
I would recommend employers add emoji usage to their electronic communications policies. Specifically, employers should implement policies that include prohibiting the use of emojis in workplace communications. Employers also need to provide training on how to communicate with colleagues and review their social media and electronic communications policies to make sure the policies are clear about what is and is not considered appropriate. Employers should be transparent and set clear expectations of what professionalism consist of in all internal and external communications. Hopefully, when sexual harassment cases end up in court, judges can become more familiar and comfortable with emojis and figure out the best way to utilize current precedent.[25]
[1] See 2015 Emoji Report, Emogi (Sept. 2015), https://go.aws/2P8HqWN (stating about ninety-two percent of the online population uses emojis and 2.3 trillion mobile messages incorporate emojis in a single year).
One emoji has even been used in over two billion tweets. See EMOJITRACKER: REALTIME EMOJI USE ON TWITTER, http://www.emojitracker.com. The “Face With Tears of Joy” emoji was also declared Oxford’s 2015 “Word of the Year.” Word of the Year 2015, Oxford Dictionaries, https://bit.ly/2uPcN1W.
[2] See Eric Goldman, Emojis and the Law, 93 Wash. L. Rev. 1227, 1228 (2018). The number of reported cases with emojis as evidence in the United States increased from 33 in 2017 to 53 in 2018 and is at nearly 50 so far in the first half of 2019. Samantha Murphy Kelly, Emojis are increasingly coming up in court cases. Judges are struggling with how to interpret them, CNN Business (July 8, 2019), https://cnn.it/39ta39M.
[3] Goldman, supra note 2, at 1230. Emojis provide two legal issues either they contribute to a misunderstanding that requires court interpretation or they raise questions about the scope of their protection. See id.
[4] See Tanya M. Kiatkulpibone and Andrea W. Paris, Emoji and Deciphering Intent in the Digital Age, Law Office of Andrea W.S. Paris (Dec. 17, 2019), https://bit.ly/38riMIh.
[5] See Erin Janssen, Hearsay in the Smiley Face: Analyzing the Use of Emojis As Evidence, 49 St. Mary’s L.J. 699, 703 (2018). In 2015, it was reported that 92% of individuals use emojis in text messages, or other social media, with a large contributing factor coming from the increase of mobile usage. See id.
[6] Id. The name originates from the Japanese terms for a picture (“e”) and written character (“moji”). Id. Japanese mobile companies were under pressure to support Japanese users’ obsession with images so they began to remark on the trend of picture messages to communicate emotions. Id.
[7] Claire Nowak, Why Do We Use Emojis Anyway? A Fascinating History of Emoticons, Reader’s Digest, https://bit.ly/2ticHia.
[8] See Gen Y, Gen Z and the Age of Emojis, Fuse (Sept. 2015), https://bit.ly/2uaZ2d8 (“For the youth consumer today, emoji and emoticons are 21st-century dialogue.”).
[9] See Apple, Emojipedia (Jan. 18, 2020), https://bit.ly/2QiT0zQ (displaying all available emojis).
[10] See Jonathan Geneus, Emoji: The Caricatured Lawsuit, 16 Colo. Tech. L.J. 431, 437 (2018).
Apple continues to add more modern emojis to the pile, for instance, their 2012 iOS update included the addition of gay and lesbian couple emojis, and they increased the racial diversity of the emoji sets. Marc Schenker, The Surprising History of Emojis, MOO (Oct. 11, 2016), https://bit.ly/35iwKdm.
[11] Goldman, supra note 2, at 1228. A blog title “Emojianalysis” purports to psychoanalyze users’ emoji preferences. See Emojinalysis, Tumblr Blog (Jan. 10, 2020) at https://bit.ly/2rMMdox.
[12] Kara E. Shea and David Johnson, If a Picture Paints a Thousand Words, What’s Wrong With Emojis?, Tennessee Emp. Law Letter (Apr. 1, 2018), https://bit.ly/39KFg7G. (“It can also be challenging to tell when a comment (such as a threat, insult, or sexual advance) is intended to be taken at face value as opposed to a joke. In this respect, emojis can serve a valuable purpose by making sure communications are received in the spirit in which they are intended.”).
[13] Id. (for example, using a dog emoji to call someone a bitch or an eggplant emoji for a penis).
[14] Maureen Minehan, Could An Emoji Bring You Down?, Afscme Blog (July 11, 2018), https://bit.ly/2P8sDve35 (“Emojis can be racially coded or coded for gender without the writer even knowing it. An emoji with a certain skin color, if sent to a minority employee by a supervisor, can later serve as evidence of a racially hostile work environment. The standard that the courts use in these cases is whether the harassment is severe or pervasive—and emojis can be evidence showing that the harassment is indeed pervasive. This can create serious problems for employers since, under the rules of discovery, these emojis can and will be turned over to the opposing party in the litigation.”).
[15] 42 U.S.C.A. § 2000e-2 (West 2020).
[17] The harassment must be “severe or pervasive.” Harris v. Forklift System, Inc., 510 U.S. 17 (1993). See also Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) (holding the harassment must be because of sex).
[18] For example, a wink face (😉) following a joke could be perceived as a proposition, a tongue out face (😛)could be interpreted as an inappropriate gesture, and let’s not even get into the new meaning of the eggplant (🍆) emoji. See Minehan, supra note 13.
[19] Nonverbal communication can evoke a more subjective meaning than verbal communications. See Gabriella E. Ziccarelli, What You Don’t Know Can Hurt You: How Nonverbal Communication in Technology is Disrupting Litigation, Blankrome: Inside Counsel (June 13, 2016), https://bit.ly/38A23CC (accentuating the importance of interpreting emojis and the power these symbols will have on the legal field when preparing for a court case).
[20] See Goldberg Segalla LLP, A New Trend: Emoji Lawsuits 😉, Lexology (Aug. 5, 2019), https://bit.ly/2FgKNFG.
[21] We should not place universal definitions to emojis because imagine if an employee sends a monkey emoji to a black employee, the employee-recipient can deem that the monkey emoji as a racial slur.
[22] In one case, prosecutors orally read text messages to the jury and skipped the reference to the emojis, but the judge ultimately required the prosecution to orally characterize the emojis. See United States v. Ulbricht, 31 F. Supp. 3d 540 (S.D.N.Y. 2014).
See also Justin Jouvenal, A 12-Year-Old Girl Is Facing Criminal Charges for Using Certain Emoji. She’s Not Alone., Wash. Post (Feb. 27, 2016), https://wapo.st/2RMo4qX (explaining the legal field will need to determine whether the intended meaning of the message was to make a threat, written only out of anger, or as a result of some other motive).
[23] Janssen, supra note 5 (asserting one of the biggest problems for courts is to establish an offender’s intent).
[24] Id.
[25] Additionally, I must also note that employers who may limit a form of its employees’ expression may implicate First Amendment issues—depending on the type of employer. If the employer is a public entity then it may restrict the employee’s speech that is not related to any matter or political, social, or other concern to the community. See Connick v. Myers, 461 U.S. 1388 (1983). Government officials should enjoy wide latitude in managing their offices without intrusive oversight by the judiciary in the name of the First Amendment. See id.
Amber Bynum is a third-year student at Penn State Law from Long Beach, CA. She has strong interest in social justice, civil rights litigation, and employment discrimination. Bynum graduated from California State University, Northridge with an undergraduate degree in business administration with an emphasis in business law and a minor in marketing. She is a recipient of a 2019 Penn State Law Public Interest Law Fund Fellowship and B.A. Rudolph Foundation Graduate Public Service Scholar Fellowship.